Citation Nr: 1753785	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  14-04 614	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to a compensable initial rating for bilateral hearing loss. 

2. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 70 percent disabling from March 17, 2010 to February 25, 2012 and from May 1, 2012.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs




ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel


INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from December 1980 to April 1981 and in February 1993. He also served on active duty from June 2009 to March 2010, with service in Iraq. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). 

Regarding PTSD, the September 2012 rating decision awarded service connection for PTSD, rated as 10 percent disabling, effective March 17, 2010. An interim September 2017 rating decision increased the Veteran's PTSD rating from 10 percent to 70 percent disabling, effective March 17, 2010. 

The Veteran was assigned a temporary 100 percent rating for PTSD from February 26, 2012 to April 30, 2012. See 38 C.F.R. § 4.29. Because a rating in excess of 100 percent may not be assigned, an increased rating for that period on appeal is moot and not before the Board.

The Veteran has attributed his unemployment as due to his PTSD. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue on the title page.

The Board notes that although it appears the Veteran requested a decision review officer (DRO) hearing in May 2017, such request was not for the matters at issue. Accordingly, the Board will proceed with adjudication.

FINDINGS OF FACT

1. The Veteran's hearing acuity has not declined to a level warranting a compensable rating.

2. The Veteran did not have total social impairment during the appeal period.

3. The Veteran is unable to secure and follow substantially gainful employment due to his PTSD.


CONCLUSIONS OF LAW

1. An initial compensable rating for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (Code) 6100 (2017).

2. An initial rating in excess of 70 percent disabling for PTSD is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, §§ 3.102, 4.3, 4.7, 4.130, Code 9411 (2017).

3. Entitlement to TDIU (other than from February 26, 2012 to April 30, 2012) is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Increased Ratings

a. Legal Criteria

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).






b. Hearing loss

	Factual Background

The Veteran has been wearing hearing aids from at least February 2011. In VA treatment records from the same month, the Veteran underwent audiometric testing with the following results: 





HERTZ



1000 
2000
3000
4000
Average
RIGHT
15
25
60
55
39
LEFT
15
25
60
45
36

[The Board notes that both air and bone conduction audiometric results were listed for the Veteran's right ear. However, bone conduction is used by VA for diagnostic purposes only, and is not used to determine disability ratings. See VA Adjudication Procedures Manual, M21-1, III.iv.4.B.4.v.] Speech recognition results, using the Maryland CNC test, were 100 percent bilaterally. 

During the Veteran's December 2011 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
30
65
60
44
LEFT
20
25
60
50
39

Speech audiometry revealed speech recognition ability of 96 percent bilaterally.

During the Veteran's August 2012 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
25
55
60
41
LEFT
25
30
55
60
43

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 92 percent in the left ear.

In August 2013, the Veteran reported that his hearing loss degraded to the point that VA provided him hearing aids. He wears them regularly to communicate with his children and anyone else he interacts with.

In VA treatment records, other audiometric examinations were conducted, but puretone threshold results were not specifically reported or word recognition scoring did not state that the Maryland CNC test was used. 

	Analysis

Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the Veteran's average puretone thresholds. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85.

Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIa is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b).

Using the audiometry conducted in accordance with regulatory criteria, hearing acuity showed no greater than Level I hearing in the left ear and no greater than Level II hearing in the right ear. Additionally, the audiometry does not reflect any exceptional patterns of hearing impairment that would warrant evaluation using Table VIa. The hearing acuity shown from these audiometry results is equivalent to a noncompensable rating under Table VII.  

The Board acknowledges that the Veteran has worn hearing aids throughout most of the appeal period and has difficulty communicating with others. However, using the schedular criteria, a Veteran who is prescribed hearing aids and has been diagnosed with hearing loss may still be assigned a noncompensable rating. Because the Veteran has not shown hearing acuity ratings that warrant a compensable rating, a preponderance of the evidence is against the claim and it must be denied.

c. PTSD

	Factual Background

The appeal period begins immediately after the Veteran's discharge from active duty service in March 2010.

In October 2010 VA treatment records, the Veteran was described as alert, cooperative, and fully oriented, with a sad, anxious affect. He reported he was frequently irritable and slept poorly. He described suicidal ideation, but he would "never" take his life because of his two teenage sons. He had not had homicidal thoughts. There was no indication of psychosis. Hallucinations were denied. Mood was pervasively depressed. Concentration and memory were fair. Interests in job, children, and church were maintained. Judgment and insight were felt to be adequate. 

Early 2011 Social Security Administration (SSA) records reflect that the Veteran was granted disability benefits due to his psychological condition with a March 2010 date of onset. He had worked at a barber shop for two to three months in the autumn of 2010, but had to leave because he kept losing his temper with customers. The Veteran thought working as a barber would be a good fit for him, because it was flexible. A psychological evaluation reflected a Global Assessment of Functioning (GAF) score of 50. The physician opined the Veteran's ability to do work-related activities was significantly impaired because of the level of his depression as well as PTSD. The Veteran's ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and ability to perform at a consistent pace without an unreasonable number and length of rest periods was markedly limited; workplace confrontations were a problem. He did not appear capable of sustained work activity regardless of the complexity of the work and his ability to interact appropriately with the general public was moderately limited. His ability to accept instructions and respond appropriately to criticism from supervisors was also moderately limited.

During a December 2011 VA psychological examination, the Veteran reported that he slept frequently during the day and had low motivation to complete tasks. He experienced nightmares twice per night and woke up during the night punching the headboard. He denied any other activity of daily living (ADL) problems. He reported a depressed mood, stating that he did not cope well with stress at work. He was currently unemployed. He had two sons from his first marriage and was currently in the midst of a divorce from his second wife. Socially, he had few friends; his hobbies included golf.

He reported memory problems and stated that he was forgetful; such problems occurred five to six times a week. He had to use a "cheat sheet" to remember certain items that should have already been committed to memory. He reported long term memory problems and stated that he forgot material that he learned in college. He reported attention and concentration problems and stated that he forgets what he has been told. He reported speed of processing problems and noticed that his thinking was slowed. He denied judgment problems. He reported decision making problems. He stated that he has prioritizing problems and is not organized. He reported suicidal ideation with no plan or intention of acting on these thoughts. He felt uncomfortable with unexpected noises. His symptoms impacted his relationships because he was not sensitive to his children and was emotionally numb.

No hygiene deficits were observed. His speech was notably slow but normal in tone and volume without pressure. His affect was liable. His mood was mildly depressed. Thought processes were tangential. There was no evidence of hallucinations, delusions, obsessions, compulsions, or phobias, nor were any such symptoms observed during the examination. The examiner opined that his symptoms were intermittent and that his thought processes and communication were not impaired. Social functioning and employment were impaired. A GAF score of 64 for PTSD and a GAF score of 55 for major depressive disorder (MDD) were assigned. 

[The Board notes that the February 2011 and November 2013 VA examiners stated that the Veteran had MDD, which is not service-connected, prior to his service and that his MDD symptoms could be distinguished from his PTSD symptoms. However, after considering VA treatment records, the evidence is at least in equipoise that the Veteran's major depressive disorder symptoms cannot be distinguished from his PTSD symptoms; thus, all symptoms will be considered as due to PTSD.]

In March 2012 VA treatment records, the Veteran reported a "good" relationship with his sons, who lived with him; they were his primary support and the reason he was still alive. He earlier reported he had full custody of them. See February 2012 VA treatment records. He expressed an interest in family services. He occasionally attended his brother's church. He was cooperative, cordial, and friendly throughout the mental health session. He spoke slowly and remained on topic. He demonstrated good insight and judgment. In a later March 2012 record, the Veteran reported more depressive symptoms within the past few weeks and was given a GAF score of 40.

April 2012 VA treatment records reflect that the Veteran had attended two professional basketball games (noted as Nuggets games), with the second game a little more manageable for him. In a hospitalization report, he said he could not maintain employment because of his PTSD symptoms; he had been fired three times in the last two years. His physician agreed that the Veteran would find it very difficult to maintain employment.

In August 2013, the Veteran reported that he had unsuccessful relationships after he returned from Iraq. He was also unable to sustain relationships with most people, including family members. His relationship with his children was strained. He also separately reported that he had extreme difficulty staying at work and that his work attendance was unacceptable to previous employers. He had uncontrolled anger and anxiety symptoms which made him difficult to be around. He suffered from extreme isolation that kept him home more than he can work.

In October 2013, the Veteran's VA physician, Dr. C. B., MD, opined that the Veteran's PTSD made him unemployable; he was unable to be around others due to his anxiety and rages.

In November 2013, the Veteran's brother stated that the Veteran experiences depression, difficulty concentrating or staying on task, avoidance, isolation, and emotional numbness to people and important family activities. The Veteran stays away from family, does not answer or return phone calls, and sometimes just "vanishe[s]."

In November 2013, the Veteran's friend, C.H., stated that the Veteran isolated himself at work and had difficulty going places and being around large crowds of people. He had difficulty remembering things, such as appointments and conversations from the same day. The Veteran was very angry, irritated, and depressed, and isolated himself from people for days, weeks, or months at a time. He was not motivated or interested in projects or communicating with others. He had a difficult time showing affection or that he cared for someone, especially a female.

During the Veteran's November 2013 VA psychological examination, the Veteran reported that he had no friends with whom he gets together. He had a female friend who helped him, but they were not in a relationship. He avoided most social situations because he did not feel comfortable in places he was not used to being. He had anxiety attacks and did not want to become angry. He was taking care of his two sons, but was not working. He had last worked a year prior, but was fired from his brother's barber shop after he and his brother had an argument. At another job, after a coworker was making noises to startle the Veteran, the Veteran reacted and quickly had the coworker on the ground with a pair of scissors to his neck. He had confrontations with customers. 

The Veteran reported that there are days he does not want to go anywhere and feels he cannot deal with things. He experienced irritability several times per week. He avoided verbal and physical altercations with others by not going anywhere. He said he has to "manufacture feelings" for his children. He felt great anger and reported feelings of depression most days.

During the examination the Veteran showed good hygiene and appropriate behavior. His speech was slow to initiate and his mood was tense. His affect was irritable to angry, but thought processes were within normal limits. He denied suicidal or homicidal ideation. There were no psychotic symptoms, and insight and judgment were adequate. 

The November 2013 VA examiner found that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The Veteran exhibited occupational and social impairment with reduced reliability and productivity. A GAF score of 52 was assigned.

In December 2013 VA treatment records, the Veteran reported that he tried not to go out as much as possible. He hit a wall in an argument with his son. He reported he wished he could be in a relationship, but was self-aware enough to know he could not offer a partner the emotional intimacy it takes to sustain one.

In May 2014 VA treatment records, the Veteran reported that he was initially homicidal towards his ex-wife, who was suing to get herself off a mortgage. He was calmer during the session and now saw it as an opportunity to build a cabin in the woods. Thought processes were normal, coherent, with no unusual thought content. He had fair insight, fair judgment, and his memory was intact. 

In September 2015 VA treatment records, the Veteran reported that his sons are doing well and he is getting along well with his new wife. He reported he got married for companionship. By March 2016, he and his wife had separated.

In December 2016, the Veteran reported two episodes of pushing and shoving matches (one with a female at a ball game when she insulted his granddaughter's team). He was always on edge, tense, and feeling threatened.

Throughout VA treatment records, the Veteran's symptoms of irritability, reclusiveness, anxiety, poor sleep, and withdrawal were repeatedly noted.

	Analysis

PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9411.

A 100 percent evaluation is warranted for total occupational and social impairment. This may be due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.

The list of symptoms in the General Formula is not intended to constitute an exhaustive list, but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126.

Prior to August 4, 2014, VA's Rating Schedule for mental disorders was based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. Like this case, diagnoses many times included an Axis V diagnosis, or a GAF score. The DSM has been updated with a 5th Edition ("DSM-5"), and VA issued a rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 70 Fed. Reg. 45093 (Aug. 4, 2014). This updated medical text recommended that GAF scores be dropped due to their "conceptual lack of clarity." See DSM-5, at 16. Because the Veteran's increased rating claim was in the process of adjudication prior to and during the adoption of the DSM-5, the DSM-IV will be utilized in the analysis set forth below.
When in effect, GAF scores were considered a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Carpenter v. Brown, 8 Vet. App. 240 (1995). GAF scores ranging from 51-60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Lesser scores reflect increasingly more severe levels of mental impairment.

Although the Veteran has social deficiencies, his social impairment is not total. Throughout most of the appeal period, the Veteran had a primarily good relationship with his sons, even if it was strained at times. He had marital problems but appears to be able to keep a relationship with other family members, such as his brother. Although his brother and C.H. stated that the Veteran separated himself from them for periods of time, their statements do not reflect a total lack of connection with him.

The Board acknowledges that the Veteran isolates himself, but such detachment does not appear to have totally affected his ability to have social relationships. Although the Veteran does not enjoy crowds, his fear of crowds has not prevented him from maintaining some social relationships and from attending professional basketball games, which have very large crowds requiring social interaction. His GAF scores range from moderate severity to severe, but his severe GAF scores do not outweigh the evidence demonstrating that the Veteran does not have total social impairment, even if he may have total occupational impairment.

In analyzing the evidence, the Board has considered, but has not exclusively relied upon (see analysis above), the symptoms associated with total occupational and social impairment in the General Formula. The Veteran demonstrated consistently good hygiene and his impairment in thought processes or communication are mild in nature, such as being slow to answer questions. Although he has some suicidal ideation, the evidence does not reflect that he is a persistent danger to himself. He has had some grossly inappropriate behavior, such as getting into shoving matches with others, but such incidents appear to be isolated; the Veteran usually demonstrated insight and judgment adequate enough to remove himself from such situations before his behavior deteriorated. Thus, he also is not a persistent danger to others. The Veteran is rarely, if ever, shown to be disoriented to time and place, and although he experiences some memory loss, he is able to remember names of close relatives, his occupation, and his own name. 

Accordingly, because a preponderance of the evidence is against a finding that the Veteran exhibits total social impairment, he does not meet the criteria for a 100 percent rating, which requires total occupational and social impairment.  Consequently, an increased rating is not warranted.

III. TDIU

TDIU will be awarded when a Veteran meets certain percentage standards and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In addition, entitlement to TDIU is an element of all appeals for a higher rating when the Veteran or the record raises the issue of unemployability, which applies here. Rice v. Shinseki, 22 Vet. App. 447 (2009). 

In this case, the Veteran meets the schedular requirements for TDIU during the appeal period. The Veteran attempted to work as a barber shortly after his discharge from military service but with unsuccessful results due to negative social interactions. He receives SSA disability payments due to his PTSD symptoms. In an April 2012 discharge report, a physician agreed that the Veteran could not work due to his symptoms and, in October 2013, his VA physician opined that he was unemployable due to his severe PTSD. The Board finds this evidence highly probative and generally uncontradicted by the record. Accordingly, at least a balance of the evidence demonstrates that the Veteran has been unable to secure or follow substantially gainful employment during the appeal period, and entitlement to TDIU is warranted.

As noted in the Introduction, the Veteran has been assigned a 100 percent rating for PTSD from February 26, 2012 to April 30, 2012 based on hospital treatment. Assignment of a total schedular rating does not automatically render a TDIU claim moot. In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) found that a TDIU was warranted in addition to a schedular 100 percent evaluation where TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no 'duplicate counting of disabilities.' Bradley, 22 Vet. App. at 293. However, in this case, the Board is awarding TDIU based on the Veteran's PTSD. Therefore, there would be duplicate counting of disabilities if TDIU were awarded during the period where the Veteran has already been assigned a 100 percent schedular rating based on PTSD. As such, TDIU will not be considered for the period from February 26, 2012 to April 30, 2012. 


ORDER

An initial compensable rating for bilateral hearing loss is denied.

An initial rating in excess of 70 percent disabling for PTSD from March 17, 2010 to February 25, 2012 and from May 1, 2012 is denied.

Entitlement to TDIU (other than from February 26, 2012 to April 30, 2012) is granted, subject to the regulations governing the payment of monetary awards.



____________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs